R v Knowles and Others

JurisdictionEngland & Wales
CourtCourt of Appeal (Criminal Division)
JudgeLord Thomas of Cwmgiedd, CJ
Judgment Date05 February 2015
Neutral Citation[2015] EWCA Crim 45
Docket Number2013/5437/C4,Case Nos: 2010/02387/C2, 2013/02356/A5, 2013/03640/A1
Date05 February 2015

[2015] EWCA Crim 45

IN THE COURT OF APPEAL (CRIMINAL DIVISION)

ON APPEAL FROM THE CROWN COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Chief Justice of England and Wales

Lady Justice MaCur

and

Mr Justice Globe

Case Nos: 2010/02387/C2, 2013/02356/A5, 2013/03640/A1

2013/00800/A6, 2014/00520/A6, 2013/02572/A5

Between:
Regina
Respondent
and
Lucinda Vowles
Carl Barnes
Danielle Coleman
Justin Obuza Odiowei
David Stuart Irving
Gordon McDougall
Appellants

Ms F Krause for the Appellants Vowles & Barnes

Mr C S A Rich for the Appellant Coleman

Miss J MaCkie for the Appellant Odiowei

Jonathan Duffy for the Appellant Irving

Mr B Hegarty for the Appellant McDougall

Mr D Atkinson for the Respondent

Lord Thomas of Cwmgiedd, CJ

This is the judgment of the court to which we have all contributed.

INTRODUCTION

1

There are before the court:

i) sitting as the Court of Appeal Criminal Division six cases where indeterminate sentences (either imprisonment for public protection (IPP) or a life sentence) had been passed between 1997 and 2008. Each specified a minimum term. In each case there was psychiatric evidence before the court with a view to a judge considering making a hospital order under s.37 of the Mental Health Act 1983 (MHA) as amended with a restriction under s.41 of the same Act. The sentencing judge did not make such an order, but each was subsequently transferred to hospital under a transfer direction made by the Secretary of State under s.47 of the MHA.

ii) sitting as the Court of Appeal Civil Division, a civil appeal in relation to a judicial review brought by the first of the appellants in the criminal appeals of the actions of the Secretary of State for Justice and the Parole Board relating to delay in the determination of her application for release from custody.

The criminal appeals

2

As we shall explain in more detail a major effect of the decision of a judge to impose an indeterminate sentence of imprisonment as opposed to making a hospital and restriction order under s.37/41 of the MHA is that the decision for release is made by the Parole Board, whereas if a hospital and restriction order had been made under s.37/41, the decision would be made, if the person is detained in England, by the First-tier Tribunal (Health, Education and Social Care Chamber (Mental Health) (FTT) or, if the person is detained in Wales, by the Mental Health Review Tribunal for Wales. The difference between England and Wales is due to the fact that mental health in Wales is a devolved competence under Schedule 7 to the Government of Wales Act 2006. However, there is for the purposes of determination of the issues in such cases as these no material difference between the powers and duties of the FTT and the Mental Health Review Tribunal for Wales.

3

In each of the criminal cases the outcome which each of the appellants seeks to achieve is to have the release and the terms of release determined by the FTT under the MHA and care after release being provided through health services, rather than having a determination on release and the terms of release made by the Parole Board and the regime after release superintended by the applicable licence regime and supervision by the Probation Service. The route by which each appellant seeks to achieve this objective is by appeal against sentence to the Court of Appeal Criminal Division in respect of the original sentencing decisions made in each of the cases in reliance on fresh evidence which each seeks to have admitted under s.23 of the Criminal Appeal Act 1968.

4

We therefore have to determine in each of these cases whether fresh evidence should be admitted and, if so whether, on the basis of that evidence, we can conclude that the sentence passed by the judge should have been a hospital and restriction order under s. 37/s.41 or whether the indeterminate sentence of imprisonment passed was correct. Our task therefore is to apply the principles set out in s.23 of the Criminal Appeal Act 1968 to the circumstances of these particular sentences.

5

The six cases were listed together for us to consider how courts should approach such cases. Although, in the light of the abolition of the sentence of IPP, it will be the case that many fewer indeterminate sentences will be passed, the problems that have arisen in these cases will arise where a judge has to consider passing a life sentence and there is a psychiatric issue such as to give rise to the consideration of treatment in hospital. As a consequence of these appeals, it seems to us that it would be helpful to give sentencing judges further guidance which, although primarily directed to indeterminate sentences, is also in large part applicable to all determinate sentences.

6

It is plainly highly unsatisfactory for a court to be revisiting many years after sentence the issue as to whether a judge should, instead of passing an indeterminate sentence, have made a hospital and restriction order under s. 37/s.41 in circumstances where the sole objective relates to the regime to determine release and conditions thereafter. We were able to examine whether there was an alternative in the light of the further material and submissions made in the civil appeal.

The civil appeal

7

During the hearing of the first of the criminal appeals we learnt that one of the appellants, Vowles, who had been sentenced to IPP, had also commenced judicial review proceedings against the Secretary of State for Justice and the Parole Board in respect of the delays that had occurred in hearing the application to the Parole Board for release from custody.

8

The judicial review proceedings were heard by Irwin J on 18 and 19 March 2014. As we explain at paragraph 79 he dismissed the claim for judicial review in a judgment given on 15 May 2014 reported at [2014] EWHC 1495 Admin. We heard the application for permission to appeal and the appeal as a rolled up hearing.

PART 1: THE APPLICABLE LEGAL REGIMES

9

It is necessary first to set out the applicable legal regimes under four headings – (1) the options available to the sentencing judge in a case where there is evidence that the offender suffers from a mental disorder, (2) the power of the Secretary of State for Justice to transfer a prisoner to hospital for treatment of a mental disorder, (3) the applicable regime for release of an indeterminate sentenced prisoner transferred to hospital by the Secretary of State and (4) the approach to sentencing.

(1) The options available to the sentencing judge

10

Where an offender who is to be sentenced suffers from a mental disorder the court has a number of alternatives:

i) A hospital order under s.37 with or without a restriction under s.41—see paragraphs 12 and following.

ii) A determinate or indeterminate sentence of imprisonment and direction for admission to hospital under s.45A – see paragraphs 17 and following.

iii) An interim order under s.38 – see paragraphs 22 and following.

iv) A determinate or indeterminate sentence allowing the Secretary of State to exercise his powers of transfer to a hospital under s.47 with or without a limitation order under s.49 – see paragraphs 24 and following.

11

It is unlikely that the central issue to which we have referred will arise in relation to determinate sentences, unless the sentence is an extended sentence or is a very long one, as the issue only arises where a decision on release has to be made by the Parole Board. We will therefore focus in this judgment on offenders where the sentence of imprisonment considered by the judge would be an indeterminate sentence, but similar principles apply to those sentenced to all determinate sentences.

(a) A hospital order under s.37 and s.41 of the MHA

12

As we have already indicated at paragraph 2 the primary importance of the determination by the sentencing judge in a case where the option is either to impose an indeterminate sentence or to make a hospital order under s. 37/s.41 is the release regime that will apply to the offender.

13

The substantive conditions for making a hospital order under s.37 of the MHA as originally enacted was set out in s.37(2):

"The conditions … are that—

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental illness, psychopathic disorder, severe mental impairment or mental impairment and that either—

(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and in the case of psychopathic disorder or mental impairment that such treatment is likely to alleviate or prevent a deterioration of his condition; … and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other available methods of dealing with him, that the most suitable method of disposing of the case is by means of an order under this section."

14

S.37 has been amended several times since 1983; in particular s.37 (2) was amended by the Mental Health Act 2007 to change the conditions as to mental disorder.

"The conditions referred to in subsection (1) above are that—

(a) the court is satisfied, on the written or oral evidence of two registered medical practitioners, that the offender is suffering from mental disorder and that either—

(i) the mental disorder from which the offender is suffering is of a nature or degree which makes it appropriate for him to be detained in a hospital for medical treatment and appropriate medical treatment is available for him; … and

(b) the court is of the opinion, having regard to all the circumstances including the nature of the offence and the character and antecedents of the offender, and to the other...

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